Vicarious Liability

Introduction

Vicarious liability makes one party legally responsible for the torts of another. In England and Wales, it most often means an employer is liable for a wrongful act committed by an employee while doing their job. The policy is simple: when a business benefits from work done, it should bear the risk of harm caused by that work.

Modern case law has refined the approach into two questions:

1. Is the relationship between the wrongdoer and the defendant one of employment or “akin to employment”?
2. Is there a sufficient connection between that relationship and the wrongful act (often called the “close connection” test), so that it is fair and just to fix the defendant with liability?

This guide summarises the key tests, leading cases, limits on liability, and practical steps for applying the rules.

What You'll Learn

• The two-part test for vicarious liability: relationship and connection
• How to identify a relationship “akin to employment”
• What counts as “in the course of employment”, including intentional wrongs
• When liability does not arise (independent contractors, frolics, personal vendettas)
• How dual or shared liability can occur between multiple defendants
• Practical steps for claimants and defendants, with key evidence to gather
• Short case summaries and a quick reference table

Core Concepts

The relationship requirement

Vicarious liability usually needs an employer–employee relationship. Courts look beyond contract labels to the practical reality:

• Control: Who directs what, how, and when the work is done?
• Incorporation: Is the worker part of the business? Do they use its systems, wear its uniform, or represent it outwardly?
• Enterprise risk: Is the work part of the defendant’s business so that the risk of harm is a business risk?

Important authorities:

• Ready Mixed Concrete v Minister of Pensions [1968] 2 QB 497 set out a multi-factor test for employment.
• Autoclenz Ltd v Belcher [2011] UKSC 41 confirms courts will look past written terms to how the relationship works in practice.
• Various Claimants v Catholic Child Welfare Society [2012] UKSC 56 and Cox v Ministry of Justice [2016] UKSC 10 recognise “relationships akin to employment” where the defendant benefits from the work, controls it to a meaningful extent, and created the risk of harm through that work.

Note: Organisations can be vicariously liable even for office-holders or those not strictly “employees”, if the relationship is functionally similar to employment.

Course of employment and the close connection test

The wrongful act must be sufficiently connected to the employee’s job. The classic Salmond formulation (an unauthorised mode of doing an authorised act) has given way to a broader fairness-based approach:

• Lister v Hesley Hall Ltd [2001] UKHL 22 established the “close connection” test.
• Mohamud v WM Morrison Supermarkets plc [2016] UKSC 11 applied it to a violent assault by a petrol station employee, holding the employer liable because the assault followed on from interaction within the scope of the employee’s customer-facing role.

Helpful rules of thumb:

• Doing one’s job carelessly is within the course of employment (negligence on duty).
• Doing something entirely personal (a “frolic”) is not. For example, detouring to run a personal errand that leads to harm may fall outside.
• The fact an act is unauthorised does not stop liability if the connection with the job is close enough.
• Timing, location, and the employee’s purpose matter, but none is decisive on its own.

Classic negligence example: in Broom v Morgan [1953] 1 QB 597, the employer was liable where the manager’s negligence in operating a beer house caused injury during working activities.

Intentional wrongs and criminal acts

Vicarious liability can extend to intentional torts if there is a close connection with the job:

• Lister (sexual abuse by a warden) and Mohamud (assault by a customer assistant) show that deliberate wrongdoing may still be “in the course of employment” if the role created or significantly contributed to the risk.

However, where the employee acts on a personal vendetta or for wholly personal reasons not linked to the job, liability may not arise. In WM Morrison Supermarkets plc v Various Claimants [2020] UKSC 12 (data breach by a rogue employee), the Supreme Court held the employer was not liable because the employee’s motive was to harm the employer, not to further the employer’s business.

Independent contractors, “akin to employment”, and borrowed workers

The general rule is that there is no vicarious liability for independent contractors. A key modern authority is Barclays Bank plc v Various Claimants [2020] UKSC 13, where the Supreme Court held the bank was not vicariously liable for a doctor who was genuinely in business on his own account.

Exceptions and refinements:

• “Akin to employment”: Cox [2016] and Armes v Nottinghamshire County Council [2017] UKSC 60 show that a non-contractual or unconventional relationship can still trigger vicarious liability if it is sufficiently similar to employment in function.
• Borrowed employees and dual liability: control can be split. Mersey Docks and Harbour Board v Coggins [1947] AC 1 and Viasystems (Tyneside) Ltd v Thermal Transfer (Northern) Ltd [2005] EWCA Civ 1151 allow liability to rest with one or more organisations, depending on who had relevant control over the negligent act at the time.

Note: Non-delegable duties (e.g., Woodland v Swimming Teachers Association [2013] UKSC 66) are a separate route to liability and are not the same as vicarious liability.

Limits, defences, and contribution

• No general “due diligence” defence: Employers cannot avoid vicarious liability simply by showing good training or systems. If the two-stage test is met, liability follows.
• Statutory exception: Some statutes provide a defence. Under s.109 Equality Act 2010, an employer may avoid liability for harassment or discrimination by proving it took all reasonable steps to prevent it.
• Frolic: If the employee steps wholly outside the job for personal reasons (Joel v Morison (1834) 6 C & P 501), liability may not arise.
• Contribution and indemnity: A defendant fixed with vicarious liability can seek a contribution from the wrongdoer or other responsible parties under the Civil Liability (Contribution) Act 1978.
• Employer’s duty to employees in litigation: In James-Bowen v Commissioner of Police of the Metropolis [2018] UKSC 40, the Supreme Court held an employer does not owe a duty to protect employees’ economic or reputational interests when conducting the defence of a vicarious liability claim.

Key Examples or Case Studies

Lister v Hesley Hall Ltd [2001] UKHL 22

• Context: Abuse by a residential warden against children.
• Holding: Employer liable; the abuse was closely connected to the warden’s entrusted care role.
• Takeaway: The “close connection” test extends beyond negligence to intentional wrongdoing.

Mohamud v WM Morrison Supermarkets plc [2016] UKSC 11

• Context: Petrol station employee assaulted a customer after a work-related interaction.
• Holding: Employer liable; the assault followed directly from the employee’s customer-facing duties.
• Takeaway: A violent response during a job-related interaction can still be “in the course of employment”.

WM Morrison Supermarkets plc v Various Claimants [2020] UKSC 12

• Context: Employee leaked payroll data online to damage the employer.
• Holding: Employer not liable; the employee’s motive and actions were a personal vendetta, not connected to furthering the employer’s business.
• Takeaway: A wrongful act with a purely personal purpose can fall outside the close connection test.

Cox v Ministry of Justice [2016] UKSC 10

• Context: Prisoner working in a prison kitchen injured a food service manager.
• Holding: The relationship was “akin to employment”; the prison service was vicariously liable.
• Takeaway: Focus on whether the defendant’s business created the risk through work integrated into its operations.

Barclays Bank plc v Various Claimants [2020] UKSC 13

• Context: Alleged assaults by a doctor engaged to perform medical assessments.
• Holding: No vicarious liability; the doctor was an independent contractor in business on his own account.
• Takeaway: Genuine contractor arrangements fall outside vicarious liability, unless the relationship is functionally like employment.

Practical Applications

• Analysing a claim

  • Identify the potential defendant(s): employer, principal, or organisation “akin to” an employer.
  • Map the relationship: contracts, payslips, uniforms, equipment, policies, supervision, rotas.
  • Pin down the job role and duties at the time of the incident.
  • Test the connection: location, timing, who initiated the interaction, purpose of the act, whether the act flowed from the employee’s duties.
  • Consider alternative or additional routes: direct negligence by the employer (e.g., negligent supervision), non-delegable duty (where applicable), and statutory claims.

• Evidence to gather early

  • Employment or engagement documents, job descriptions, training records.
  • Policies and procedures (e.g., data handling, use of force, safeguarding).
  • Witness statements on what the employee was doing and why.
  • CCTV, logs, tracking data, and incident reports.
  • Insurance and indemnity details, plus contracts between potential co-defendants.

• Common defence points

  • The wrongdoer was not an employee nor in a relationship akin to employment (Barclays).
  • The act was a “frolic” or personal vendetta with no sufficient connection to the job (Morrisons 2020).
  • Another entity had the relevant control at the time (borrowed worker), or liability should be shared (Viasystems).
  • Where the claim is under discrimination law, show “all reasonable steps” were taken (Equality Act s.109).

• Risk management for organisations

  • Clear job roles and boundaries for decision-making.
  • Robust supervision for roles with contact with the public or vulnerable people.
  • Systems that reduce foreseeable risks (e.g., data access controls, staffing levels).
  • Incident reporting and rapid review to prevent repeat events.
  • Training and policies remain essential for safety and culture, but note they do not, by themselves, defeat common law vicarious liability once the tests are met.

Summary Checklist

• Confirm a qualifying relationship: employee or “akin to employment” (Cox).
• Apply the close connection test: is the wrongful act sufficiently linked to the job (Lister; Mohamud)?
• Exclude pure frolics and personal vendettas (Joel; Morrisons 2020).
• Check contractor status and whether someone is genuinely in business on their own account (Barclays).
• Consider borrowed workers and possible dual liability (Mersey Docks; Viasystems).
• Remember: no general due diligence defence at common law; statutory defences may apply (Equality Act s.109).
• Preserve evidence on control, incorporation, and what the worker was doing at the time.
• Think about contribution claims and insurance arrangements if multiple parties are involved.

Quick Reference